275 U.S.

475
48 S.Ct. 160
72 L.Ed. 381

NAGLE, Commissioner of Immigration,

v.
LOI HOA. SAME v. LAM YOUNG.
Nos. 115, 116.
Argued and Submitted Dec. 5, 1927.
Decided Jan. 3, 1928.

The Attorney General and Mr. Wm. D. Mitchell, Sol. Gen., of

Washington, D. C., for petitioner.
Mr. George W. Hott, of Washington, D. C., for respondent.
Mr. Justice STONE delivered the opinion of the Court.

Respondents, Chinese merchants born in China and never naturalized

elsewhere, applied at the port of San Francisco for admission into the United
States. They had resided in French Indo-China and been engaged in business
there for a number of years. They presented to the immigration authorities
certificates of identification issued by officials of French Indo-China, with visas
by the American Consul at Saigon, French Indo-China. They were denied
admission on the ground that the certificate of identification required by section
6 of the Chinese Exclusion Act (Act of May 6, 1882, c. 126, 22 Stat. 58, 60 as
amended by the Act of July 5, 1884, c. 220, 23 Stat. 115, 116, 117; U. S. C.
title 8, 265 (8 USCA 265)), was a certificate of the government of which
respondents were subjects, in this case the Chinese government, and not a
certificate of the government of French Indo-China, where respondents merely
resided. Their petitions for writs of habeas corpus were denied by the District
Court for Northern California. On appeal the two cases were consolidated in
the Circuit Court of Appeals for the Ninth Circuit, and the judgments of the
District Court reversed. Loi Hoa v. Nagle, 13 F.(2d) 80. This court granted
certiorari. 273 U. S. 682, 47 S. Ct. 237, 71 L. Ed. 837.
Article 2 of the treaty of November 17, 1880, between the United States and

China (22 Stat. 826, 827), provides for the admission of Chinese subjects
'proceeding to the United States as * * * merchants.' Section 15 of the
Exclusion Act, as amended (8 USCA 273), makes the act applicable 'to all
subjects of China and Chinese, whether subjects of China or any other foreign
power.' Section 6 as amended (the relevant portions are in the margin1 ) requires
'every Chinese person, other than a laborer, who may be entitled by said treaty
or this act' to admission, to 'obtain the permission of and be identified as so
entitled by the Chinese government, or of such other foreign government of
which at the time such Chinese person shall be a subject.' The sole question
presented is whether the word 'subject' as used in section 6 is to be taken as
including only those persons who by birth or naturalization owe permanent
allegiance to the government issuing the certificate, or as embracing also those
who, being domiciled within the territorial limits of that government, owe it for
that reason obedience and temporary allegiance.

The word may be used in either sense. See The Pizarro, 2 Wheat. 227, 245, 4 L.
Ed. 226; Carlisle v. United States, 16 Wall. 147, 154, 21 L. E. 426. If the
narrower meaning be the appropriate one, the respondents were 'subjects' of the
Chinese government, and it alone could issue certificates entitling them to
admission. The government of French Indo-China could issue such certificates
only to persons of the Chinese race who owed it permanent allegiance.

The Circuit Court of Appeals thought that, since the statute was in execution of
a treaty with China, which related only to the immigration of Chinese nationals,
the provisions in section 6 for the certification of identity could have no
application to persons of Chinese race who were nationals of other
governments, and so concluded that certificates were required of governments
other than China only in the case of Chinese nationals resident under those
governments.

But in this view it is overlooked that the amended Exclusion Act is broader
than the treaty. Before the amendment the federal courts had not agreed
whether persons of Chinese race who were nationals of countries other than
China were affected by the statute. United States v. Douglas (C. C.) 17 F. 634;
In re Ah Lung (C. C.) 18 F. 28. Section 15 of the amended act made all its
provisions applicable 'to all subjects of China and Chinese, whether subjects of
China or any other foreign power.' The avowed purpose of the amendment was
to alter the act as interpreted in United States v. Douglas, supra, where it had
been held to have no application to Chinese subjects of Great Britain. Report of
Committee on Foreign Affairs, 48th Cong. 1st. Sess. H. Rep. 614, p. 2.2 The
purpose, therefore, of the insertion in section 6 of the phrase 'of such other
foreign government of which at the time such Chinese person shall be a subject'

was to require Chinese immigrants owing permanent allegiance to governments

other than China to present certificates from the governments of their
allegiance.
6

Something may be said in support of the view that the more usual and, perhaps,
more accurate use of the word 'subject' is that contended for by the government.
Const. U. S. art. 3, 2; Hammerstein v. Lyne (D. C.) 200 F. 165; Dicey,
Conflict of Laws (2d Ed.) 164. It is so used in our immigration and
naturalization laws. Act of February 5, 1917, c. 29, 20, 39 Stat. 874, 890 (8
USCA 156); Act of June 29, 1906, c. 3592, 4, 34 Stat. 596 (Comp. St.
4352). It may be said, also, that the importance of administrative convenience
and certainty in a statute of this character suggests that the word was used as
indicating citizenship by birth or naturalization, a status more easily ascertained
than that of domicile or residence. But these considerations need not detain us
in view of the history of the legislation, to which we have already referred, and
of the long and consistent practical construction of the act.

Both governments appear to have treated section 6 as amended as requiring the

certificate to be issued by the Chinese government, except where the immigrant
owes permanent allegiance to another foreign government.3 The administrative
regulations of the various departments have from the first required that the
certificates of Chinese subjects coming from countries other than China be
issued by Chinese consular officers.4

This interpretation was accepted by President Cleveland in his special message

of April 6, 1886.5 8 Richardson, Messages and Papers of the Presidents, 391.
He recommended legislation permitting the certificate in the case of Chinese
nationals, resident in other foreign countries where there were no Chinese
consular officers, to be issued by United States consuls in those countries. The
Chinese government has uniformly authorized its diplomatic and consular
officers in foreign countries to issue such certificates in the case of Chinese
subjects resident there.6 The validity of such certificates issued to Chinese
subjects by consular officers of China in other foreign countries had been
recognized by the Department of State and upheld by the Attorney General.7

Added weight is given to this course of practical construction by the history of

article 3 of the treaty with China of March 17, 1894, 28 Stat. 1210, and of the
later legislation re-enacting the Exclusion Act. Article 3 provided that Chinese
subjects entitled to admission might 'produce a certificate from their
government or the Government where they last resided.' The very fact that it
was thought necessary to incorporate this provision in the treaty is a recognition
that the pre-existing legislation did not have that effect. The treaty expired by

limitation in 1904 and was not renewed. While it was in force Chinese
nationals, resident abroad, could be admitted to the United States on
presentation of a certificate either of the Chinese government, as authorized by
section 6, or of the government of their residence, as permitted by the treaty.8
During the life of the treaty the amended Exclusion Act, continued in force for
10 years from May 5, 1892, by the act of that date (chapter 60, 1, 27 Stat. 25
(Comp. St. 4315)), would have expired. But by the Act of April 29, 1902, c.
641, 1, 32 Stat. 176, 'all laws now in force * * * regulating the coming of
Chinese persons, * * * into the United States, * * * are hereby, re-enacted,
extended, and continued so far as the same are not inconsistent with treaty
obligations, until otherwise provided by law.' By this statute the certificate
provisions of section 6 of the amended Exclusion Act were continued
indefinitely and, on the expiration in 1904 of the treaty of 1894, became the
only law on that subject. The reenactment of section 6 unchanged, and subject
only to the provisions of a treaty now expired, must be accepted as a legislative
approval of the practical construction the section had received. Compare
National Lead Co v. United States, 252 U. S. 140, 40 S. Ct. 237, 64 L. Ed. 496.
10

If there could be doubt as to the proper interpretation of section 6 standing

alone we think all ambiguity has been removed by the history of the legislation
and the practical construction which has been given to it.

11

Reversed.

'Sec. 6. That in order to the faithful execution of the provisions of this act,
every Chinese person, other than a laborer, who may be entitled by said treaty
or this act to come within the United States, and who shall be about to come to
the United States, shall obtain the permission of and be identified as so entitled
by the Chinese government, or of such other foreign government of which at
the time such Chinese person shall be a subject. * * *'

The very fact that the amended act went beyond the scope of the treaty and
affected Chinese nationals of powers other than China was one source of the
objections of the committee minority. 'It is perhaps worthy of notice that this
section not only attempts to make more stringent restrictive regulations against
Chinese laborers, subjects of China, with whom we have some show of right,
under a treaty, to make them, and against the Chinese subjects of other nations,
with whom we have no such treaty stipulations, but that its other provisions
unquestionably exceed the scope of the treaty with China.' Report of Committee
on Foreign Affairs, Views of the Minority, 48th Cong. 1st Sess. H. Rep. 614, p.
5.

On December 6, 1884, in pursuance of the amendment of that year, the

Secretary of the Treasury declared in a circular to the officers of the customs
that 'Chinese subjects * * * desiring to come to the United States from
countries other than China, may do so on production of a certificate, * * * to be
issued by a Chinese diplomatic or consular officer, or if there be no such
Chinese officer at such port, on a like certificate to be issued by a United States
consular officer.' Foreign Relations, 1885, p. 192. Although this regulation, in
so far as it permits the original issue of certificates to be made by American
consular officers, went beyond the statute, it clearly indicates that Chinese
nationals resident abroad were required to procure certificates not from the
government of their residence but from the Chinese government or an American
consular officer. In the case of certain Chinese merchants resident in Hong
Kong, the Chinese government requested that the statute and regulation be so
applied. Memorandum, received August 5, 1885, Mr. Cheng Tsao Ju to Mr.
Bayard, Foreign Relations, 1885, p. 184. To this the State Department acceded.
Mr. Bayard to Cheng Tsao Ju, August 11, 1885, Foreign Relations, 1885, p.
185.

Treasury circular, Dec. 6, 1884, supra, footnote 3; Treasury circular No. 7,

January 14, 1885; consular instruction of April 15, 1905, by the Secretary of
State, 6 MS. Instructions to Diplomatic and Consular Officers; Chinese
Exclusion Regulations, May 3, 1905, Department of Commerce and Labor, rule
33; Regulations, February 5, 1906, Department of Commerce and Labor, rule
30; Regulations, February 26, 1907, Department of Commerce and Labor, rule
30; Regulations, April 18, 1910, Department of Commerce and Labor, rule 10;
Regulations, Department of Labor, January 24, 1914; Id., October 15, 1915; Id.,
October 27, 1916; Id., May 1, 1917; Id., October, 1920; Id., October 1, 1926.

The President thus stated the effect of section 6: it 'provides in terms for the
issuance of certificates in two cases only: (a) Chinese subjects departing from a
port of China; and (b) Chinese persons (i. e., of the Chinese race) who may at
the time be subjects of some foreign government other than China, and who
may depart for the United States from the ports of such other foreign
government. * * *
'It is sufficient that I should call the earnest attention of Congress to the
circumstance that the statute makes no provision whatever for the somewhat
numerous class of Chinese persons who, retaining their Chinese subjection in
some countries other than China, desire to come from such countries to the
United States.'
The recognized that the amended statute went beyond the scope of the treaty by
saying: 'A statute is certainly most unusual which, purporting to execute the

provisions of a treaty with China in respect of Chinese subjects, enacts strict

formalities as regards the subjects of other governments than that of China.' 8
Richardson, Messages and Papers of the Presidents, 391, 392.
6

Mr. Tsui to Mr. Wharton, June 2, 1891, Foreign Relations, 1891, p. 457; Mr.
Yang Yu to Mr. Gresham, October 10, 1893, Foreign Relations, 1893, p. 260.

Mr. Wharton to Mr. Tsui, June 17, 1891, Foreign Relations, 1891, p. 459; 20
Op. Atty. Gen. 693.

The Attorney General at one time thought that the treaty provided an exclusive
method of certification for Chinese nationals resident outside of China. 21 Op.
Atty. Gen. 347; 22 Op. Atty. Gen. 201. But see Mr. Wu to Mr. Hay, November
7, 1898, Foreign Relations, 1899, pp. 190, 191.